State v. Cooper, No. 22626

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: PER CURIAM
• Citation: 353 S.E.2d 441,291 S.C. 332
• Parties: The STATE, Respondent, v. Kamathene A. COOPER, Appellant. . Heard
• Docket Number: No. 22626
• Decision Date: 17 September 1986

Page 441

353 S.E.2d 441 291 S.C. 332 The STATE, Respondent,
v.
Kamathene A. COOPER, Appellant. No. 22626. Supreme Court of South Carolina. Heard Sept. 17, 1986.
Decided Nov. 17, 1986.

[291 S.C. 333] David I. Bruck, Columbia, Michael G. Nettles, Lake City, Bernard D. Dusenbury, Florence, and S.C. Office of Appellate Defense, Columbia, for appellant.

Atty. Gen. T. Travis Medlock, Asst. Atty. Gen. Harold M. Coombs, Jr., Staff Atty. William Edgar Salter, III, Columbia, and Sol. Dudley Saleeby, Jr., Florence, for respondent.

PER CURIAM:

Appellant Kamathene A. Cooper was convicted of murder, forgery and armed robbery in connection with the death of Rheupert W. Stewart and sentenced to death. His direct appeal and mandatory sentence review are consolidated for purposes of this opinion pursuant to S.C. Code Ann. § 16-3-25 (1976) as amended. We reverse and remand for a new trial.

Appellant raises numerous allegations of error of which we address the following:

I. Whether the trial judge erred in qualifying as a juror a uniformed officer of the South Carolina Highway Patrol;

II. Whether the trial judge erred regarding his comments on the appellant's Fifth Amendment Rights to testify;

III. Whether the trial court erred in limiting the closing argument of appellant's counsel concerning the appellant's alleged assertion of his right to counsel and his understanding of his Miranda rights; and

Page 442

[291 S.C. 334] IV. Whether the trial court erred in not allowing into evidence photographs of appellant's living conditions, in violation of S.C. Code Ann. § 16-3-20(C) (1976).

I. QUALIFICATION OF HIGHWAY PATROLMAN AS JUROR

David A. Miller, a patrolman with the South Carolina Highway Department, was summoned to serve as a juror at appellant's trial. Patrolman Miller appeared in full uniform and with his service revolver during the voir dire stage of trial. Defense counsel challenged for cause the seating of Miller as a prospective juror, given his official law enforcement capacity. The trial judge overruled counsel's challenge for cause and qualified Patrolman Miller to serve on the jury panel. Appellant used one of his peremptory challenges to exclude the patrolman and exhausted his peremptory challenges prior to the impaneling of the trial jury. See State v. Smith, 286 S.C. 406, 334 S.E.2d 277 (1985).

Every accused in a criminal prosecution is entitled to a competent and impartial jury, and it is the duty of the trial court to see that a jury of competent, fair and impartial persons is impaneled. State v. Rogers, 263 S.C. 373, 210 S.E.2d 604 (1974); and see also S.C. Constitution Art. I, Section 14. Under S.C. Code Ann. § 14-7-820 (1976), as amended, certain persons are excluded from serving on a jury panel, to wit: ¹

No clerk or deputy clerk of the court, constable, sheriff, probate judge, county commissioner, magistrate or other county officer or any person employed within the walls of any courthouse shall be eligible as a juryman in any civil or criminal case.

This Court has adopted a functional rather than a rigid formalistic approach in interpreting and applying the provisions of this statute. See e.g. State v. Johnson, 123 S.C. 50, 115 S.E. 748 (1923), and Bryant v. State, 264 S.C. 157, 213 S.E.2d 451 (1975). In Johnson, we held that a privately employed deputy sheriff for an industrial corporation was disqualified under § 14-7-820 because he was vested with like [291 S.C. 335] powers and duties of a county deputy sheriff. Whereas in Bryant, the Court declined to disqualify a special deputy sheriff because his duties were confined to the service of process and not those duties exercised by a law enforcement officer.

A highway patrolman is an officer of the State who has broad authority and power, similar to that of a deputy sheriff, in enforcing the law. S.C. Code Ann. § 23-5-40 (1976), as amended, provides in pertinent part that a highway patrolman:

... shall have the same power to serve criminal processes against offenders as sheriffs of the various counties and also the same power as such sheriffs to arrest without warrants.... Such officers and patrolmen shall also have the same power and authority held by deputy sheriffs for the enforcement of the criminal laws of the State.

In addition, S.C.Code Ann. § 23-5-60 (1976), as amended, requires that " [highway] patrolmen shall, upon request of any sheriff, assist such sheriff in the solution of any crime and the apprehension of any law violator."

In our view, highway patrolmen are functionally equivalent to deputy sheriffs. Although highway patrolmen are officers of the State rather than the various counties, they exercise similar duties and responsibilities as deputy sheriffs, and...